ARCHIVED - Broken Promises: Complaints Concerning Meal Allowance For Extended Temporary Duty

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Introduction

In 2002, to assist in the implementation of its ‘Military Automated Air Traffic System’, the Canadian Forces invited military and civilian staff from its units across Canada to attend a training course. This course was voluntary. Participants were asked to agree to come. While participants would benefit from the training, participation would not be without its costs and inconveniences. Those who agreed to attend the course would be required to live away from their homes and families and reside for 102 days in Richmond, B.C., one of the most expensive places in the country. The Project Management Office for the Air Traffic System advised prospective military participants that, if they agreed to come, they would receive $50 per day for food and incidentals, or a $5,100 allowance. The participants were given every reason to believe the $50 per day amount was within the relevant regulations. On that basis, 10 enlisted military personnel, as well as two civilians, agreed to take part. The per diem amounts were paid in advance. The participants then traveled to Richmond and began the course, which commenced on February 23, 2002.
 

On March 4, 2002 the military students were advised that the terms had changed. The per diem rate had been calculated incorrectly. They would not be entitled to $50 per day. They would be receiving only $17.50 per day. The students were nonetheless told that the Project Management Office, which believed this about face to be unfair, was negotiating with the Director of Compensation and Benefits Administration in an attempt to secure the $50 per day allowance. Students were cautioned that they should nonetheless be prudent with their money, and keep receipts in case those efforts were unsuccessful. The negotiations were not completed by the end of the course, and the students went back to their units without the matter being resolved. On their return home, each of the ten military participants submitted their claims at the full $50 per day. Nine of them had their claims approved. The tenth was told that the proper per diem rate was $17.50, and he would have to repay $3,000 of the advance he had received. Five months later, the nine students whose claims had been processed at the full per diem promised, were told they would be paid $50 per day for the first seven days in Richmond, but they were, in fact, only entitled to $17.50 per day for the rest of the time. They were told that they too would have to repay any overpayments. They would have to do so regardless of the promises that had been made, and regardless of their understanding of the terms when they decided to attend the course. They would have to repay, even though it had been implicitly confirmed to them, by the approval of their $50 per day claims, that the matter had been settled in their favour. Rules were rules. The fairness of it did not matter.
 

The unfairness in inducing persons to act to their detriment on a clear promise, only to later renege on that promise, is obvious. Our entire law of contract is predicated on the notion that a promise, once acted upon, is binding. The equitable doctrine of “estoppel” is based on similar thinking. Of course, as an Ombudsman it is not my function to decide matters based solely on law. I am also to make recommendations based on fairness. The law nonetheless demonstrates how fundamental it is, in the interest of fairness, to ensure that those who induce others to rely on the promises they make, hold faithful to those promises. The inequity in refusing to do so is in no way lessened because the “promisees” are members of the Canadian Forces. It is in no way lessened because there is a chain of command. Nor is it lessened because the representations were made by mistake. After all, the Project Management Office – Military Automated Air Traffic System was authorized to communicate promises on behalf of the Canadian Forces, and the Canadian Forces should be bound by those promises.
 

Altogether apart from concerns about equity and fairness, pragmatic considerations within the Canadian Forces also require that promises be kept. If personnel cannot rely on promises made to them, the trust that is needed to encourage their participation in important initiatives will be lost. This, of course, is contrary to the long-term interests of the Canadian Forces. Moreover, the morale of those who feel cheated by broken promises suffers, and so too, does their commitment to the Canadian Forces itself.
 

In the face of this obvious unfairness, my Office has interceded and attempted to obtain for the students what was initially promised to them. I am not persuaded by the suggestion that they were told several days after they arrived in Richmond that they might not get the $50 per day. By then it was too late for the Canadian Forces to renege. These members had already been induced to attend. They had already made arrangements and commitments.
 

We have had only limited success in our efforts to obtain the promised funds for these members. Regulations have been found that would allow reducing the claw backs by approximately $800 per student. Still, the members are being asked to, or have already been forced to, repay another $2,200 each. Ultimately we were met with the response that Treasury Board regulations govern, and that, fair or not, that is the way it is.
 

This is not an adequate response. It is simply not good enough to point mechanically to regulations and directives, and to blame those regulations and directives for the unfairness caused by misrepresentations that have been made. The Canadian Forces should accept its responsibility for having created the problem. While it is essential to respect rules, it is not at all necessary to throw up a white flag whenever a fixed and rigid rule threatens to perpetuate a clear inequity it was never intended to cause. The Canadian Forces must commit itself to a course of advocacy that will leave no stone unturned in trying to remedy this situation. It has simply not done so. Until this is done, the unfairness cannot conveniently be blamed on rules or Treasury Board Directives. Until the Canadian Forces has exhausted all measures of redress, responsibility for the unfairness that has occurred rests with the chain of command. There are legal and political mechanisms that could be used to resolve this problem. They have not yet been attempted. As a result, I will recommend at the end of this Report that the Canadian Forces should make diligent efforts to utilize each and every mechanism available to it to compensate the students for the difference between the amount that has been authorized up to now and the full $50 per diem they were initially promised, so that no one is unfairly out of pocket.

 

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Complaint

The complainants are junior Canadian Forces (CF) members who attended a technical training course from February to June 2002 in Richmond BC, sponsored by the Project Management Office – Military Automated Air Traffic System (PMO MAATS).Prior to the course the complainants were told that their per diem for food and incidentals would be $50. At the end of the course, with one exception, their travel claims were settled for that amount. However, they were subsequently informed that, according to the Director Compensation and Benefits Administration (DCBA), their per diem entitlement for all but the first seven days of the 102-day course was only $17.50. In October 2002, each was advised he would have to repay approximately $3,000. The complainants feel this is unfair.

 

Investigative Process

The complainants contacted our office in late October 2002. We interviewed nine complainants who had attended the course in question, the supervisors of two of the complainants, and military and civilian decision-makers at PMO MAATS who had been involved in the administration of the course. The case was assigned to Investigator Suzanne Belson of the Special Ombudsman Response Team (SORT).We also reviewed CF policy and procedure, including Compensation and Benefits Instructions for the Canadian Forces (CBI) - Chapter 209, Treasury Board Travel Directives and DCBA messages. We obtained and reviewed e-mails related to this case.
 

On the basis of the information gathered, we attempted to resolve the complaint informally by contacting DCBA, discussing the circumstances, and asking them to review their decision. On December 11, 2002, DCBA advised us by e-mail that, in their view the complaints were not justified and “there is nothing more to be done (with reference to) Richmond.” (This e-mail is attached at Appendix C.) On December 23, 2002 we wrote to Col Linda Colwell, Director General Compensation and Benefits (DGCB), setting out the case as we saw it and requesting that she reconsider the matter. In February 2003, the Director of SORT Gareth Jones and Investigator Belson met with Col Colwell and LCol Jacques Taillefer, DCBA, in an attempt to resolve this matter informally. This meeting resulted in Col Colwell authorizing approximately $800 in additional funds for the complainants. She also advised that, in her view, no further payments could be made to the complainants.

 

Summary of Facts

The CF contracted a new training course for technicians designated to work on the Military Automated Air Traffic System (MAATS), designed by Raytheon Systems for the CF. Under the auspices of PMO MAATS, ten CF Corporals and Master Corporals and two civilians, drawn from eight locations across the country, were selected to attend the first session of the course from February 23, 2002 to June 3, 2002 at Raytheon premises in Richmond, BC.
 

On January 23, a month prior to departure, students received “joining instructions” which specified that, because cooking facilities were available where they would be housed in Richmond, their per diem would be reduced from the usual $50 to $41.80 for food and incidentals. (The joining instructions are attached at Appendix A.) The following day, they were sent an e-mail indicating an error had been made in the joining instructions and they would, in fact, receive $50 per diem. (Attached at Appendix B.) On this basis, students and their supervisors agreed they would go on the course and they took cash advances, based on the $50 per day promised, to cover expenses while in Richmond.During the 102 days of the course, the students were housed in an apartment hotel with individual kitchen facilities. This facility was some distance from the building where the course was taught. Because that building was still under construction, there was no cafeteria for lunch and, based on our investigation, inadequate facilities for heating or storing brown bag lunches.
 

On February 25, two days after the course began, one of the Wings with a student on the course drew PMO MAATS’ attention to a DCBA message, stating that CF members on Temporary Duty (TD) for more than 60 days were entitled to only 35% of the normal per diem, i.e. $17.50 a day rather than the full $50 per diem. PMO MAATS had been completely unaware of this message and, finding the various regulations conflicting and confusing, sought clarification from the Canadian Forces Support Unit (Ottawa) CFSU(O). The question ultimately reached DCBA and, on March 1, DCBA confirmed to CFSU(O) that 35% of the per diem was correct and that this could not be changed without DCBA approval.PMO MAATS felt $17.50 a day was insufficient to cover all the students’ expenses and was also concerned that the change in the students’ per diem would be unfair to them. Between March and July, PMO MAATS continued to explore with DCBA, via phone and e-mail, the possibility of getting approval for a larger amount. DCBA consistently held that, unless it could be demonstrated that $17.50 a day was not enough, the regulations had to be applied.
 

In the meantime, on March 4, two weeks into the course, a senior non-commissioned member (NCM) who was the students’ liaison with PMO MAATS, was instructed to inform them that the per diem announced in the amended joining instructions could be incorrect for the military members of the group and that, according to DCBA, their actual entitlement should be only $17.50 a day. He was also asked to tell the students PMO MAATS was still trying to resolve the matter and until it was resolved, they should be prudent with their money and keep receipts for incidentals. The students understood they were not to contact their units about the problem, because PMO MAATS was dealing with DCBA on the group’s behalf. Nonetheless, some of the students did contact their units and were told not to worry; the $50 amount would be paid.In the following weeks, the senior student in the course tried several times without success to get definitive information about the per diem. In mid-May, two weeks before the course ended, the senior NCM student liaison returned to Richmond and told the students the per diem question was not yet resolved and discussions between DCBA and PMO MAATS were still ongoing.
 

On their return home, the students submitted travel claims. All but one had his claim accepted at the $50 rate on the basis of the initial undertakings in the joining instructions, and the follow up e-mail. In October 2002, the nine students whose claims had been settled at the full per diem were told the correct meal allowance was, in fact, $17.50 (after the first seven days at the full rate) and they would have to reimburse DND/CF approximately $3,000 each. The tenth student’s claim was settled at the $17.50 rate and he was required to repay $3,000 of the amount he had taken as an advance.
 

There are three parties involved in the complaint; the students on the course, PMO MAATS, and DCBA, the office responsible for travel-related compensation regulations.
 

The complainants state that:

  • They and their supervisors relied on the information PMO MAATS provided and they agreed to go on the course based on that information;
     
  • Several of them checked the regulations governing Temporary Duty of more than sixty days and found no reference to any amount less than the usual per diem;
     
  • As instructed, they took travel advances based on the rate announced;
     
  • Advice about the potential reduced rate came too late for them or their units to make different arrangements (e.g. not attend the course or return to their units);
     
  • They were given the impression they should not contact their units about this matter,
     
  • $17.50 is not enough to comfortably cover all food, including a purchased lunch, and incidentals in Richmond;
     
  • No definitive information about a different rate was provided during the course or, for nine out of ten students, until after their travel claims had been settled at $50 per diem;
     
  • Requiring them to repay is unfair and has caused them significant financial hardship.
     

For its part, PMO MAATS was entirely willing to pay the promised rate of $50 per day. An officer at PMO MAATS advised my investigator that PMO MAATS was willing to pay the students that rate for the following reasons:
 

They had reviewed Queens Regulations and Orders (QR&Os), Canadian Forces Administrative Orders (CFAOs) and CBIs, confirmed the per diem rate with Canadian Forces Support Unit (Ottawa) and run a sample claim through ClaimsX, the DND system designed to process travel claims automatically, with no problem. They thought they had acted with due diligence until, after the course began, when they learned that extended Temporary Duty with cooking facilities should be paid at 35% of full per diem. Prior to this, they had no knowledge of the DCBA message, which set out rates for Temporary Duties in excess of 60 days, as it was not reflected in any of the sources PMO MAATS had checked. Although the message had had wide distribution, it had apparently not been forwarded to PMO MAATS or the Finance staff at most of the units concerned;
 

  • They accept that, in good faith, they made errors and gave wrong advice. They were willing to make those errors right by paying the students what had been promised;
     
  • They budgeted for $50 per diem per student and the funds were available.
     

DCBA’s initial position, both in telephone conversations and an e-mail dated December 11, 2002 (at Appendix C) was that:
 

  • Regulations state that only 35% of the full daily allowance is payable for extended Temporary Duty with cooking facilities;
     
  • They are not saying it is the case here, but many people choose to take an assignment because they believe they might be in the position “to pocket some extra money;”   
      
  • $17.50 a day is adequate for food and incidentals when cooking facilities are available. The DCBA analyst seemed to base that assessment on personal experience,
    stating in an e-mail to my investigator; “If, as you mentioned, members could not get by on $17.301 a day when they have cooking facilities (I, however, just bought a small, whole cooked chicken in Ottawa, renowned for its high produce costs, for $5.50 that would last me for 2-3 days), then members can substantiate their extra costs by providing DCBA with grocery receipts.” (Underlining in original.);
     
  • While it is unfortunate the complainants were misadvised, Treasury Board Directives state that “persons authorizing travel and persons authorized to travel should be aware that expenses resulting from misinterpretations or mistakes are not a basis for reimbursement. ”   
      

Following our December 23, 2002 letter to Col Colwell and our meeting with her and LCol Taillefer from her office in February, Col Colwell concluded in a letter to us dated February 24, 2003 (Attached at Appendix D):
 

  • DCBA’s advice to PMO MAATS about the students’ entitlements was clear and decisive and should have been immediately given to the students;
     
  • DCBA asked PMO MAATS to explain why the amount specified in the regulations could not meet the students’ needs but received no information about, for example, the inadequacy of lunch facilities at the Raytheon plant, or grocery prices in Richmond. (In fact, this information was given to CFSU(O) but apparently did not reach DCBA.);
     
  • The fact that PMO MAATS budgeted for a $50 per diem per student does not authorize them to pay more than regulations provide;
     
  • She is sympathetic to the students’ situation but neither she nor anyone else in the department has authority to change the policies governing benefits or overpayments.
     
  • At the same time, she was able to authorize:
     
    • payments for lunches the students had to purchase because they were unable to take lunches to Raytheon, and;
       
    • the full meal and incidental rates up to the time the students were informed of the correct per diem rates i.e. for a total of fifteen days, rather than the seven they had previously been entitled to.
       

This increased the students’ entitlements by approximately $800 and reduces the amount to be recovered to approximately $2,200 each.


1 This amount should be $17.50 and may simply be a typographical error.

 

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Findings

All of the classic indicia of unfairness, arising from broken promises, exist in this case. In particular, there was an agreement being negotiated, based on promises made that were reasonably relied on by the students, to their detriment.

 

The “Agreement”

For the students, the course given at Raytheon was a “voluntary course,” not a “career course.” They were not obliged to take it. Although voluntary for the students, it was a “required course” for the CF. The Wings need MAATS-trained people and, whether these students or others took this training, a number of people from each of the Wings would have had to take it.
 

Since no students were directed or ordered or deployed to take the course, it is fair to characterize recruitment to the course as an “agreement.” The CF needed to attract registrants, in its own interest. In doing so, it outlined terms that registrants could expect. The students agreed to participate, given the terms offered.

 

The “Promise” of $50 per day

Without question, the $50 per diem was one of the terms held out by the Canadian Forces to induce agreement. Students decided to participate in the course based on the terms described before they went, including the information that they would receive a $50 per diem. The significance of this promise is evident when it is realized that over the 102 days, $50 per day amounts to more than $5,000, a significant amount of money for those at the Corporal or Master Corporal rank. The only reasonable interpretation is that the indicated per diem rate was a promised term of the agreement, if students chose to participate.

 

The “Reasonable Reliance”

According to students we have spoken to, the per diem offered was an important factor in their decision to leave their homes and families for almost four months. Their reliance on this information was entirely reasonable. First, it was information held out by PMO MAATS, which was authorized and expected, on behalf of the Canadian Forces, to recruit personnel for the Richmond training program. Second, as events unfolded, the students had every reason to believe that the $50 per diem information was reliable. Initially, the joining instructions stated that the per diem was $41.80. Those instructions say, “Students are advised to calculate cash advance requests based on this amount.” The representation that students were expected to rely on the per diem information could not be clearer, or more expressed; they were advised to request cash advances “based on this amount.” The next day they were furnished with an e-mail from PMO MAATS, that replaces the $41.80 figure, with the $50 figure, as the amount to be used in calculating their cash advances:
 

It has been brought to my attention that the rates quoted in the joining instructions attached to the ref are incorrect. The rates indicated on the DIN have not been updated and IAW with the rates specified in the Treasury Board guidelines (see link below para 1.4 Extended periods in travel status) the daily entitlement for students on the course is $50. Incidentals are not payable to the members for the entire duration of the course.

 

The inclusion of a “correction” including specific reference to the Treasury Board Directives could do nothing but give the students complete confidence that the $50 amount had been confirmed, and was entirely dependable. Indeed, our information is that several students, who had been provided with a website reference in this e-mail, checked and confirmed the $50 figure.

 

The “Detriment”

It is obvious that the students “relied” on this $50 per day offer to their detriment. In other words, because of what they had been promised, they made decisions they may not have made otherwise. Although it is now impossible to recreate the scenario to determine whether students really would have refused to go on course if the per diem was only $17.50 a day, there is every reason to believe the $50 promise was attractive enough to induce participation. In particular, several students stated that, following the announcement, they made it clear that if they were only eligible for $17.50 a day, they would not want to stay on the course. They felt misled and they thought that $17.50 was simply insufficient to cover their expenses, given the relatively high cost of items in the Vancouver area.
 

Other students made decisions in the organization of their personal affairs, based on the promised amount. The supervisor of one affected member told my investigator this member had agreed to go on the course only because he planned to use some of his per diem to pay for childcare expenses; without this flexibility, he could not have easily left his family. This member’s spouse is employed. Normally the couple worked staggered shifts and shared care of the children. In his absence, the family needed a babysitter. While it is true that meal allowances are not meant to cover childcare, this is beside the point. He was promised a fixed amount that made his participation possible.This “detriment” was not removed when the students were advised more than a week after the course began, that they might not receive the full amount. They were already at the course, having been attracted to attend, at least in part, on the strength of that promise. For this reason, the response to our inquiry that the PMO MAATS officials should have contacted course members immediately, when the correct per diem rate was given to PMO MAATS on March 1, 2002, is irrelevant. It would have been unfair whether the first steps to break the promise were taken on March 1, or on March 4. Moreover, the students cannot be blamed for any delay in notifying them. It was not their doing.
 

It is true that in some cases, had the students notified their units, at least some of them may have been recalled from the course immediately; a supervisor of two students said he would have returned his staff members to their unit had he been told about the error in the per diem early in the process. Several of the complainants say their chains of command have made similar comments. Yet the students cannot be faulted for not notifying their units and thereby partially remedying the problem in this way. The students say they were told not to contact their units about this matter. PMO MAATS says this was a misunderstanding; what was meant was that the students should not ask their units to contact DCBA individually as PMO MAATS was dealing with the matter centrally. But PMO MAATS did not inform the students’ units of the problem either and, in the end, the students were not able to get any help or clarification from their home units. In fact, those students who did contact their units, in spite of the above advice, were told that, as far as they could see, the $50 per diem was correct and they should not worry.
 

Altogether apart from whether students would have gone on course had there been no mistake in the per diem rate, or returned from course if the problem had been made known to their units, all the students are now suffering as a result of the demand for repayment. As could have been expected, they spent the money they received and are now placed in a difficult position in trying to repay it, or because they have repaid it. Any attempt to claim that the decision to spend this money was irresponsible, given that the students were cautioned on March 4 to be frugal, has to be rejected; nine of those students were effectively told when their claims were approved on their return that the money was theirs. The repayment obligation of approximately $3,000 (now $2,200) imposes serious hardship. For most people, an unexpected outlay of this amount would not be easy to cope with. These complainants are Corporals or Master Corporals. They are not earning high salaries. It is not surprising, and entirely credible, that they told my investigators that repaying such amounts would be extremely difficult for them.
 

It is easy to understand the distress suffered by those who have already been required to repay and the ongoing worry for those who must still anticipate repayment claims soon to come into effect. One complainant states he is reluctant to tell his wife about the error before it becomes absolutely necessary, because she will worry about the impact of repayment on the family budget. The student who used the money for childcare expenses is also left in a very difficult financial situation now that the money has to be returned. Two of the students report they were asked to repay their overpayments in the fall of 2002. They were offered a choice of a lump sum repayment or installments spread over six months. When they asked for additional time, they were told that the debts had to be cleared by the end of the fiscal year and, therefore, the maximum time repayment could be stretched was six months. (As an aside, it is not clear why Command Headquarters was not asked to approve a longer repayment time. CFAO 203-3 provides that extensions are possible when a claw back will cause a member “undue financial hardship.”) In any event, both students applied for loans through the Canadian Forces Personnel Assistance Fund (CFPAF) to cover their debts. One received a loan, which is costing him 3% over 18 months. The other was refused because, with his mortgage and many house repairs to cover, he already had too high a debt load. In the end, requiring this student to repay within six months was the straw that broke the camel’s back; he was forced to sell his house to clear the debt. The student whose travel claim was originally processed at $17.50 per diem and who was asked to repay immediately also had to take a loan through CFPAF which he is repaying with 5.5% interest over 2 years. This fiasco has been harmful for all of the students – through no fault of their own.
 

I cannot leave this “detriment” discussion without observing that one of the responses given by DCBA was particularly disheartening. It was not in keeping either with the facts, or the commitment by the Canadian Forces of fair treatment for its members. When we were attempting to negotiate a settlement, we were told by DCBA:
 

I’m not saying that this is the case with these members, but it cannot be ignored that many people choose to take an assignment because they believe they might be in the position to pocket some extra money. As crude as it sounds, it happens all the time, and it is often when members do not end up coming back with ‘extra’ that we receive complaints.

 

The disclaimer, “I'm not saying that this is the case,” is verbiage. There would have been no point in making this suggestion if it was not being intimated that these complainants may somehow be trying to take unfair advantage by seeking to pocket “extra” money. They are doing nothing of the sort. They are simply seeking to be paid what they were promised after relying on that promise to their detriment.

 

The Irrelevance of the Error by PMO MAATS

It is true that PMO MAATS was wrong in making the promise of a $50 per diem. For whatever reason, it did not access the correct regulation. This can be of no consequence in assessing the fairness of what happened. What matters is that there was a promise, and there was “reasonable reliance.” As indicated, the students who received the promise had every reason to believe it to be true.In resisting this claim, DCBA seeks to rely on the Treasury Board Travel Directive, current at the time, which states that “persons authorized to travel should be aware that expenses resulting from misinterpretations or mistakes are not a basis for reimbursements.” It is my opinion that this reference is irrelevant to the issue at hand.
 

It is difficult to accept that the intent of this Treasury Board directive was to absolve the Canadian Forces from payment obligations arising from its own mistakes and misrepresentations to its members. Even however if this were the case, what ultimately should govern here is what is the fair and just result. It is simply not fair for the Canadian Forces to point to this provision as an excuse for doing nothing to attempt to obtain recompense for its members who were mislead and who have been significantly financially penalized as a result.

 

The Unfairness in Breaking the Promise

In the end, there can be only one conclusion. The broken promise has harmed members of the Canadian Forces. Fairness demands that they not be left to suffer.
 

That unfairness, and the lack of wisdom in failing to redress it, was apparent to one senior officer, who attempted to intervene to resolve the issue on behalf of one of the students. He sent an e-mail on July 5, 2002 to DCBA asking them to reconsider the decision to claw back money from students:
 

The crux is that despite the best of intentions a serious error was made for which the students are now being penalized. Further errors in judgment denied me the ability to properly deal with this thing at the unit level. The claims have been finalized and now I am advised to take recovery action. All this without due consideration for the position of the students – the bureaucracy can be heartless can it not?

From where I sit DCBA and PMO MAATS can come to an understanding based on current policy and try to “correct” this matter in arrears in favour of the Crown. That’s fine. I’ll be dealing with the personal financial issues brought on by this fiasco and I wouldn’t be surprised to see individual or collective Redress of Grievance, appeals to QOL, Ombudsman submission or other perfectly justifiable actions alleging “bad faith” on the part of the Crown…. There are times when policy gets in the way of simply doing what’s right and gentleman, this is one of those times that demands leadership and not bean counting…

 

Not surprisingly, there is some evidence the treatment of the students in this case has impacted not only on their own morale, but also on general morale in the units concerned, and potentially on operational effectiveness. An e-mail from a senior PMO MAATS officer discussed the negative impact the treatment of the students was having on other members whom may be asked to attend future PMO MAATS courses:
  

We have already started to receive indications that no students will be made available (for the next two courses) if this issue is not resolved. This is impacting our ability to complete the project.

 

None of this is in the best interests either of the members involved, or of the Canadian Forces.

 

Other Indications of Unfairness

In my opinion, the broken promise is enough to demonstrate unfairness in the treatment of the complainants. There is, however, something else of concern. There are significant differences in the meal allowances for which the complainants were eligible and those provided to other CF members and civilians. On the face of it, this, too, seems unfair.
 

In the same apartment hotel, and with the same facilities as the MAATS Technical Training students, was a group of military air traffic controllers taking a different course. Those members were entitled to the full per diem for the duration of their course because it lasted only 58 days. As noted above, there were also two civilians on the complainants’ course who received full per diem for all 102 days. Nothing suggests that any of these individuals had higher expenses than any other.
 

Although the three groups were all paid correctly according to the regulations that applied to their particular situations, it is hard to grasp the logic behind these differences and easy to understand why the complainants, eligible for only $17.50 a day when others in the same facility received $50, feel they have been treated inequitably.
 

To make matters worse from the complainants’ point of view, students in the second serial of the Technical Training course, which was held from September 4 to December 17, 2002 benefited from a change in Treasury Board regulations that, since October 1, has provided full per diem for the first thirty days of an extended TD and 75% of the per diem thereafter. A student attending the same course would now receive more than twice as much as the first group for food and incidentals. The complainants and some in their chains of command believe the change in regulations was, at least partly, prompted by their experience and that, in a way, others have gained at their expense. It might also be argued that the increase in allowances for extended TD recognizes 35% was just not adequate.

 

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Conclusion

Clearly this case results from an unfortunate series of errors and omissions, none of which are the fault of the persons who have been burdened with the consequences. As the foregoing shows, this is clearly unfair.
 

There is no doubt that these ten junior military members, in deciding to volunteer for this course and leave their homes and families for nearly four months, relied on information provided by persons upon whom they should have been able to rely. The information, albeit inaccurate, was both given and received in good faith. By the time it became apparent it might be wrong, it was too late for the students to change their decisions. Moreover, they had no final and definitive answer about the amount of the per diem until after their travel claims were settled when they were asked to repay. Not only were the rules changed in the middle of the game - which is unfair enough - but in this case those affected weren’t even given definitive information about the new rules until long after the game was over. Even if there is no legal duty on the part of the CF to pay the students what they had been promised, there is surely a moral responsibility.

 

Remedies

Having found these CF members were treated unfairly, my next step is to determine what can be done to remedy the situation.As I noted above, there is no doubt in this case that PMO MAATS made an error and, in effect, compounded their mistake by leading the students to think - throughout the course and even later - that they might still receive the full per diem. As DGCB states in her letter to us of February 24, 2003: “It is clear that the students were incorrectly informed through their joining instructions of the per diems to which they would be entitled while on course.” However, she goes on to say: “I am sympathetic to the situation in which the students find themselves, but I do not have (nor does anyone in the department have) the discretionary authority to change the policies governing reimbursement benefits or those governing overpayments.”    
 

Col Colwell is correct, insofar as Treasury Board Directives require that overpayments to travelers be recovered “as a debt owing to the Crown.” (Treasury Board Travel Directive, 1.3.)
 

At the same time, and with the greatest respect to everyone concerned, while we recognize that taxpayers’ money must be spent responsibly, we cannot accept that Treasury Board’s intent was to require that individual CF members bear the burden of an administrative error of this magnitude. Regulations or directives should not be used as a shield to impede doing what is right and fair. That this is also Treasury Board’s current thinking is clear in the new Travel Directive, updated from the version quoted by DCBA above, and issued in October 2002. Rather than declaring that “...expenses resulting from misinterpretations or mistakes are not reimbursable”, the new Travel Directive provides flexibility: “Expenses resulting from misinterpretations or mistakes are not a basis for reimbursement or non reimbursement. However, such situations shall be reviewed on a case by case basis.”   
   

In October 1997, ADM (Per) issued a CANFORGEN concerning misleading advice given by unit and NDHQ authorities with respect to the restricted release policy. That CANFORGEN provided that:
 

The MND, CDS and ADM(Per) have made it quite clear that individual members of the CF will not suffer as a result of poor administration or bad advice of either the chain of command or NDHQ directorates.2

 

DCBA has itself applied this CANFORGEN to ensure fairness in other cases, which my office has dealt with. In this instance, however, the Department has concluded it has no discretion to change or make exceptions to Treasury Board policies.
 

There are several formal processes through which the unfairness done to the complainants might be remedied:
 

  • Via the Special Powers of the Minister (CBI 209.013). This article permits the Minister to approve compensation for members who have not been compensated “because the relevant circumstances, although not dissimilar to, were different from the circumstances established” when, in his estimation, “it would be equitable and consistent with the purpose of (CBI 209)” to do so;
     
  • By considering this a possible case of negligent misrepresentation which should be compensated;
     
  • By ex gratia payment;
     
  • Finally, if it is considered that the Department of National Defence is obliged to recover these overpayments, and has no authority to make exceptions to Treasury Board regulations or to waive repayment in any other way, consideration should be given to Article 23.2.1 of the Financial Administration Act. This provides that the Governor in Council may, on the recommendation of Treasury Board, remit a debt where “the Governer in Council considers that the collection of the... debt is unreasonable or unjust or that it is otherwise in the public interest to remit (it).” In this case, the Minister would apply to Treasury Board for a recommendation to the Governor in Council to remit the overpayment made to the students and would include a copy of this report.
     

With all of these mechanisms available, it is simply unsatisfactory for the Canadian Forces to point to regulations in order to excuse itself from the moral and possibly legal costs of its own misrepresentations. What happened to these members was not fair. The Canadian Forces should be committed to correcting such unfairness. It must do so not only in the interests of its members, but ultimately in its own interests.


2 : ADM(PER) 068/97 CANFORGEN 12/97 291455Z OCT 97

 

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Recommendations

I therefore recommend that:
 

1. The CF find a way to compensate the students for the difference between the amount that has been authorized up to now and the full $50 per diem they were initially promised.
 

As previously noted a number of students have incurred significant financial hardship as a result of DND’s actions to recover the money that was initially paid to them. At least two of these students have been required to take loans to repay monies, which in my view they should have not had to repay. It is unfair that these students be left out of pocket for the interest incurred on these loans.
 

I therefore recommend that:
 

2. Any student who has incurred loan interest costs in connection with repayment also be reimbursed the amount of the interest.

 

André Marin
Ombudsman
Department of National Defence and Canadian Forces

 

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Appendix A: Joining Instructions - MAATS Technical Training

Location

Training will take place at the Raytheon Systems Canada Limited facilities in Richmond, British Columbia. Students will be housed at the Executive Airport Plaza, 7311 Westminster Hwy, Richmond, B.C. PMO MAATS will make all the necessary arrangements for rooms.

 

Travel

MOT is to be via most economical means. TAN numbers and FE will be provided with the course-loading message. Students are instructed to ensure arrival at Richmond NLT 1800hrs, one day prior to course commencement. Those arriving by air are to use the complimentary hotel shuttle bus from the airport to the hotel. The shuttle runs approximately every half-hour.

 

Dress

Dress while on course will be 3E-service dress. No combat clothing or night jackets are to be worn while on course. Students may choose to wear 3B or 3C-service dress. Due to the climate at Vancouver it is suggested that the windbreaker or sweater and lightweight (plastic) raincoat are sufficient outerwear during the course.

 

Lodgings

PMO MAATS will be paying the cost of the hotel accommodations directly, therefore, it will not be necessary for the student to use a credit card or request an cash advance for this expense. The student will, however, be billed for expenses associated with the hotel accommodations such as telephone calls, in-room movies, room service meals etc and will, therefore, be required to present a valid credit card to the hotel upon check-in. Any student not in possession of a personal credit card or Amex card should request a Government Amex card from their unit for this purpose.
 

Each room is equipped with cooking facilities including microwave oven, laundry facilities and iron.

 

Per diem

Students are advised that IAW CFAO-209.13 paras 10 and 11 outlining EXTENDED PERIODS OF DUTY TRA VEL, the accommodations at the hotel have appropriate facilities, therefore, the per diem for the course duration will be reduced to $41.80 as outlined in Annex A. Students are advised to calculate cash advance requests based on this amount.

 

Cash advances. Amex and personal credit cards

As the TD claim will not be settled for roughly 3 months, students are reminded to make the necessary arrangements to ensure Amex and/or personal credit card bills will be settled on time. Personnel may have their mail forwarded to the hotel, whereupon it will be delivered to the room. The mailing address is:
 

Guest (name)
Executive Airport Plaza
7311, Westminster Hwy,
Richmond, British Colombia
Canada
V6X 1A3
 

Personnel are also reminded that income tax returns will need to be filed during the time they are on course and the necessary arrangements should be made in order to meet this requirement.

 

Medical/Dental Services

There are no military dental or medical services in the area. Students are therefore reminded to ensure they are in possession their Blue Cross – National Defence Health Care Card. Medical and Dental services can be obtained if necessary with the use of this card.

 

Pre-course Briefing

There will be an informal briefing at 2000 hrs in the hotel the day before course commencement. Information on subjects such as vehicle use, hotel amenities, gym facilities, location of Raytheon facilities and course senior duties etc. will be covered during this briefing. All students are required to attend the briefing.

 

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Appendix B: Joining Instructions E-mail dated January 24, 2002

 

From: Anderson.DNW@forces.ca
Sent: Thursday, January 24, 2002 8:41 AM
To:
Cc:
 

Subject: Course Loading Instruction – MAATS Technical Training
 

Reference Subj e-mail sent Wed 1/23/02 9:22 AM

 

It has been brought to my attention that the rates quoted in the joining instruction attached to ref is incorrect. The rates indicated on the DIN have not been updated and IAW with the rates specified in Treasury Board guidelines (see link below para 1 A Extended periods in travel status) the daily entitlement for students on the course is $50.00. Incidentals are not payable to the members for the entire duration of the course.
 

Regret any problems/confusion created by this situation.

 

http://www.tbs-sct.gc.ca/pubs_pol/hrpubs/TBM_113/apcc-oc101_e.html

 

D.N.W. Anderson
MWO
(613) 998-9443
(613) 990-9507 Fax
e-mail: Anderson.DNW@forces.ca

 

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Appendix C: Richmond Inquiry E-mail dated December 11, 2002

 

Belson S@Ombudsman@Ottawa-Hull
From: Ryan HA@ADM(HR-Mil) DCBA@Ottawa-Hull
Sent: December 11, 2002 2:03 PM
To: Belson S@Ombudsman@Ottawa-Hull
Cc: Henry Maj RM@DCBA@NDHQ; Lowe Capt D@DCBA@NDHQ; Lee RG@DCBA@NDHQ; Roquet Lt(N) PE@ADM(HR-Mil) DGCB@Ottawa-Hull
Subject: Richmond inquiry

 

Hello!
 

I tried calling but I suppose you were on the phone. I don’t know if you received my message, but thought I’d send a reply regardless.
 

After having reviewed applicable references, discussing the issue again with Capt Lowe, and confirming DCBA's standpoint on the issue, I'm afraid that nothing more is to be done wrt the Richmond case. As I mentioned in our phone conversation, and as CF personnel are well aware, financial commitments should not be made based on benefits they might receive (for example, with respect to the Post Living Differential). The point that these members had the choice to go on this particular course is irrelevant. I'm not saying that it is the case with these members, but it cannot be ignored that many people choose to take an assignment because they believe they might be in the position to pocket some extra money. As crude as it sounds, it happens all the time, and it is often when members do not end up coming back with ‘extra’ that we receive complaints. Regardless of what members are advised they will be receiving for a meal allowance before accepting employment on a temporary duty or course, appropriate financial compensation IS given for living expenses during periods of travel and temporary duty. At NO time are members expected to pay for their own meals during such employment, AND the CF is careful to ensure that members will neither be financially disadvantaged for their food and lodging, nor accrue unreasonable amounts of money in excess of that which is required, at taxpayers' expense.
 

First, it is Treasury Board who establishes meal rates and the dates new rates will take effect, not DND. Obviously, the implementation of these changes can sometimes fall in the middle of one's deployment. However, this is not justification for reimbursement. Under Part 1 Administration, 1.1.2, of the Treasury Board Travel Directive states that “People travelling on government business, including training, shall be afforded transportation and accommodation that are comfortable and of good quality. Allowances, rates and conditions of payment and reimbursement shall be sufficient to meet reasonable, legitimate expenses that are necessarily incurred as a result of the requirement to travel. In exceptional travel situations, when a person is confronted with unusual costs, actual and reasonable expenses may be reimbursed.” If, as you mentioned, members could not get by on $17.30 a day when they have cooking facilities (I, however, just bought a small, whole cooked chicken in Ottawa, renowned for it's high produce costs, for $5.50 that would last me 2-3 days), then members can substantiate their extra costs by providing DCBA with grocery receipts. Even if grocery costs are higher in Richmond, I find it hard to believe that personnel would not, hypothetically, have been able to buy a box of cereal, milk, bread, lunch meat, pasta, salad, fruit, and some extras, to last them a week, for under $121.11.
 

Further, while it is unfortunate that members were inadvertently mislead as to what their entitlements would be, the same reference, under section 1.1.3, highlights that “Persons authorizing travel and persons authorized to travel should be aware that expenses resulting from misinterpretations or mistakes are not a basis for reimbursement. Uncertainties as to entitlements should be referred to higher authorities.”      
 

I hope this information provides enough insight/detail as to how cases are assessed and entitlements are granted. Feel free to contact me if you have any further questions on the matter. I thank you otherwise for bringing the members' concerns to us.
 

Hope you had a good trip to Ottawa!
 

Happy Holidays!
 

Hollie Ryan
HR Policy Advisor
DCBA 3-3/DGCB/ADM(HR-Mil)
992-3210 P
996-7912 F
ryan.ha@forces.ca
 

“God and the Soldier we adore in times of trouble and not before. All things done and trouble righted, God is forgotten and the Soldier is slighted.”

War of the Roses, 1460

 

 

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Appendix D: February 24, 2003 letter from Col Colwell, DG Compensation and Benefits

National Defence | Défense nationale
National Defence Headquarters | Quartier général de la Défense nationale
Ottawa, Ontario | Ottawa (Ontario)
K1A 0K2 | K1A 0K2

 

1000-1 (DGCB)

 

24 February 2003

Mr. Gareth Jones
Director Special Ombudsman Responses Team
100 Metcalfe Street, 12th Floor
Ottawa, Canada K1P 5M1

 

Dear Mr. Jones:

 

In reference to your letter of 23 December 2002, let me begin by thanking you and Suzanne Belson for taking the time to meet with LCol Jacques Taillefer and me. While it has taken some time to provide this written reply, I do hope that the mitigating action that we discussed and which is confirmed below, will assist you in dealing with the file and the individuals affected by the unfortunate mis-application of policy for the February to June 2002 Richmond, BC course sponsored by the Military Automated Air Traffic System (MAATS) Project Management Office (PMO).
 

As you are aware, our first involvement with the case occurred on the 27 February 2002, nine days after the beginning of the course. Mr. Levert of the PMO MAATS directed a further inquiry to Director Compensation and Benefits Administration (DCBA) 3-4 on 28 February 2002. The analyst provided the correct policy interpretation to PMO MAATS on 1 March 2002. Having confirmed that course members were entitled to only $17.50 vice $50.00/day, PMO officials should have contacted course members in Richmond immediately. I cannot explain why the message appears to have been garbled in the transmission as there was never any doubt as to the policy or its application. In accordance with an e-mail to Mr. Levert (copy provided at our 11 February 2003 meeting), it should have been clear that the CO could approve full meals and incidentals only for the first seven days of the course.
 

On 10 April 2002 Mr. Perkin, a former MAATS Project member, asked DCBA to further explore the Richmond situation. He did not provide new information at the time. I have no record of a response other than that provided by DCBA, LCol Taillefer, when he discussed the situation with Mr. Perkins and, on 13 May 2002, provided him an e-mail making it clear that “if it can be demonstrated that the monthly allocation of $525.00 (in addition to the first seven days of full per diem and incidentals) provided is not enough to pay for the meals then we are prepared to review. Additional substantiations are required”. We received no further communication on the issue until your investigation began.
 

It appears that your investigation was complicated by the fact that PMO MAATS has indicated that the Project budgeted for the $50.00 per diem. Unfortunately the PMO failed to differentiate between having funding and having authority to spend that funding. Further, with respect to CF benefits, it is important to keep in mind that CF pay and benefits, including reimbursements, must in accordance with the National Defence Act, be specifically approved by the Treasury Board to apply to our members. For some reason, many policies approved for CF members have differed greatly from those negotiated for members of the Public Service. This “disconnect” is changing, and as I indicated at our meeting, our policy reviews are moving us toward not just comparable but more equal benefits.
 

It is clear that students were incorrectly informed through their joining instructions of the per diems to which they would be entitled while on course. Approved policies and regulations take precedence over joining instructions. On 4 March 2002, the students were informed that their actual entitlement was $17.50 a day and that they should be prudent with their money. For some reason, PMO MAATS indicated to the students that they were dealing with DCBA, thus, providing the students the false impression that the policy could/would be changed. At the school in mid-May, the students were told that the situation was not resolved. This information is completely inaccurate as the PMO was well aware of the policy in the late February - early March 2002 time frame.
 

As I indicated at our meeting, I am sympathetic to the situation in which students find themselves, but I do not have (nor does anyone else within the Department have) the discretionary authority to change the policies governing reimbursement benefits or those governing overpayments. However, it is clear from your investigation that there was no cafeteria or suitable lunch area at the Raytheon establishment. (I note that the information you provided is exactly what we were trying to get from PMO MAATS last spring). Thus, with that justification in hand, I can authorize reimbursement of the lunch meal rate for each day the students were on training at Raython's premises (commencing after the period of full meals and incidentals). Further, in accordance with previous Treasury Board decisions, I can authorize full meals and incidentals up to and including 4 March 2002, the point that the students were informed of the correct rates. While I am sadly aware that these additional reimbursements do not address the overpayment, they represent the maximum reimbursement possible under the current policy.
 

The new Canadian Forces Temporary Duty Travel Instruction will be approved with effect from 1 October 2002. Students attending the Richmond course during the fall of 2002 will enjoy the same benefits as those applied to members of the Public Service from that date forward.
 

Thank you for you patience in this matter and thank you too, for providing the information that has allowed partial mitigation, albeit to only a minor extent, of the problems created for our members as a result of misinterpretation of the reimbursement policy in place at the time of the February to June 2002 Richmond course.

 

Yours truly,

(Original signed by)

L.J. Colwell
Colonel
Director General Compensation and Benefits

 

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Appendix E: July 22, 2003 letter from LGen Couture

 

Assistant Deputy Minister | Sous-ministre adjoint
(Human Resources – Military) | (Ressources humaines – Militaires)
National Defence Headquarters | Quartier général de la Défense nationale
Ottawa, Ontario | Ottawa (Ontario)
K1A 0K2 | K1A 0K2

 

7209-30 (DRASA)

 

22 July 03

 

André Marin
Ombudsman
100 Metcalfe Street, 12th Floor
Ottawa, ON K1P 5M1

 

DND OMBUDSMAN File # 02-1381-RICHMOND TRAINING CENTRE

 

References: A. Your letter dated 9 June 2003
B. E-mail from DCBA 3 dated 12 March 2003
C. CFAO 209-13 paragraphs 10/11
D. Treasury Board Travel Directive 1993 Version

 

I would like to thank you for the extensive report provided under reference A, which refers to complaints made by Canadian Forces members on the meal allowances provided when they were on extended training at Richmond, British Columbia. The circumstances described in your report are indeed of concern. While the conclusion of the report supports a moral obligation to find, within the mechanisms available, a way to compensate the students, the possible implications of the proposed solution are not to be taken lightly. Consequently, these implications require further analysis from a broader CF and legislative perspective. I have therefore directed my staff to conduct an analysis of the applicable legislations when an error, omission or misleading advice is provided to a CF member before making a decision. Once the review is completed, I will advise on your recommended course of action.

 

(Original signed by)

C. Couture
Lieutenant-General

 

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Appendix F: December 1, 2003 letter

 

Assistant Deputy Minister | Sous-ministre adjoint
(Human Resources – Military) | (Ressources humaines – Militaires)

National Defence Headquarters | Quartier général de la Défense nationale
Ottawa, Ontario | Ottawa (Ontario)
K1A 0K2 | K1A 0K2

 

7209-30 (DCBA)

 

01 December 2003

 

André Marin
Ombudsman
100 Metcalfe Street, 12th Floor
Ottawa, ON K1P 5M1

 

DND OMBUDSMAN FILE # 02-1381
RICHMOND TRAINING CENTRE

 

References: A. My Letter of 22 July 2003
B. Your letter of 9 June 2003
C. Ombudsman Report 9 June 2003

 

  1. In response to your 9 June 2003 letter and report entitled Broken Promises: Complaints Conerning Meal Allowance for Extended Temporary Duty and as indicated in my letter to you dated 22 July 2003, I instructed my staff to undertake an extensive review of the regulations and policies related to this case. The review has taken some time as we have sought legal opinion and reviewed a number of potential mechanisms for resolving the issues that were raised. As Colonel Colwell indicated in her February 2003 letter, we are sympathetic to the situation in which students attending the Military Automated Air Traffic System (MAATS) course in Richmond BC, from 18 February to 30 May 2002, found themselves.
     
  2. You offered four suggestions in your report by which remedy for the MAATS students could be achieved. The first, use of Compensation and Benefits Instructions for the Canadian Forces (CBI) 209.013 (2) Power of the Minister, does not apply. The second suggestion, a possible case for misrepresentation which should be compensated, does not appear promising because the Queens Regulation and Order for the Canadian Forces (QR&O) 203.04 on overpayments remains in effect. While the members in question were in receipt of faulty advice, they were, in accordance with a Governor in Council (GIC) order, accountable for being acquainted with the financial benefits and reimbursable expenses to which they are entitled. The fourth recommendation is problematic, as it would require making a case for a GIC remission order. This action is time consuming and bureaucratic in nature, and is generally based on the Government's ability to collect. In this case, there is no question that the "overpayment" could be collected.
     
  3. The third suggestion, an ex gratia payment, is currently under review. Such payment, if possible, would include a lump sum payment that takes into consideration all factors in this case. The payment would be based on rates in place at the time of the MAATS training, that is, Treasury Board (TB) CF rates in place prior to 1 October, 2002, the effective date of the new TB Travel Directive and the yet to be approved Canadian Forces Temporary Duty Travel Instruction (CFTDTI). All pertinent material, including a copy of your 9 June, 2003 report, will be forwarded to the Office of the CF Legal Advisor Claims and Civil Litigation for consideration. I will keep you informed of progress made in resolving this important issue.

 

(Original signed by)

C. Couture
Lieutenant-General

 

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